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Valparaiso University Law Review Volume 31 Number 3 pp. 951-969 Summer 1997 How and Why

Summer 1997

How and Why the Marketplace of Ideas Fails

Paul H. Brietzke

Recommended Citation

Paul H. Brietzke, How and Why the Marketplace of Ideas Fails, 31 Val. U. L. Rev. 951 (1997). Available at:

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Brietzke: How and Why the Marketplace of Ideas Fails






I am grateful for the opportunity to address this distinguished Conference.

It will be interesting to compare our discussions with those from the possibly even more distinguished London P.E.N. Symposium on the 300th Anniversary of Areopagitica, in 1944.' We would presumably adopt (President) E.M.

Forster's observations on the pleasures

and the duty of getting our minds clear

for the future, 2 but many of the P.E.N. participants' World War II concerns are

not ours. Their world is no longer ours, any more than Milton's (or Holmes') world is ours. Each generation must reinvent the worthy Areopagiticato reflect its own concerns, and my perhaps unpopular argument is that an accumulation of currently-inappropriate assumptions around the "Areopagitica idea" necessitate a substantial reformulation of that idea.

Areopagitica is

thought 3

to enter

our First

Amendment jurisprudence

through Justice Holmes'

(and Justice Brandeis') Abrams dissent, in 1919:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is

Presented to the Free Speech in a Democratic Society Conference, celebrating the 350th

Anniversary of Milton's Areopagitica, Tampa, Nov.


"" Professor,

Valparaiso University

School of




Forest College; J.D.,

University of Wisconsin; Ph.D., University of London.


A SYMPOSIUM (Herman Ould ed., 1970).


E.M. Forster, PresidentialAddress, in FREEDOM OF EXPRESSION: A SYMPOSIUM 9, 10

(Herman Ould ed.,


3. Holmes' analogy has been traced to persons influenced by Milton-Jefferson and Mill for

example-as well as to Milton. See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., joined by Holmes, J., concurring) (Abrams marketplace of ideas notion based on Jefferson's writings); Harold J. Laski, The Areopagitica of Milton After 300 Years, in FREEDOM OF

EXPRESSION: A SYMPOSIUM 168, 177 (Herman Ould ed., 1970) ("the spirit of the Areopagitica

seems once more to come to life" in Holmes' "great dissent"); Stanley Ingber, The Marketplace of


introduced into American law by Abrams dissent); Thomas David Jones, Article 4 of the InternationalConvention on the Elimination of all Forms of RacialDiscrimination and the First Amendment, 23 HOw. L.J. 429, 448-49 (1980) (Milton's and Mill's "myopic" and "Olympian belief in the free trade of ideas," that the good and true must always triumph over the evil and false).

A Legitimizing Myth,

1984 DUKE L.J. 1, 3 (ideas from Mill and in Areopagitica first

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better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our


Along with Justice Brandeis' (and Justice Holmes') Whitney concurrence, 5 this Abrams analogy of ideas to markets reflects a joint effort to "sell" a judicial activism over the First Amendment to their colleagues and to the public. That

their sales effort succeeded is shown by the subsequent judicial willingness to

draw their

that their



of ideas analogy depends upon four implicit and

assumptions for its coherence."" A coherent structure of free speech analysis arguably cannot be built upon so much implausibility.

analogy. 6 Analogy is the weakest form of argument in logic, but it

the best we






thus unfortunate



.Much of this implausibility was not obvious to Holmes (or to Milton), but implausibility now serves to mar the analogy's rhetorical beauty. For example, Charles Lawrence can plausibly argue that: "The American marketplace of ideas was founded with the idea of the racial inferiority of non-whites as one of

4. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (Prior to World

War I, the First Amendment attracted little political, judicial, or scholarly interest.).


Whitney, 274 U.S. at 375.


The most comprehensive list is Ingber's, supra note 3, at 2 n.2:

See, e.g., Board of Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853, 866-67 (1982); Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 (1981); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537-38 (1980); FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 760 (1976); Bigelow v. Virginia, 421 U.S. 809, 826 (1975); Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 248 (1974); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969); Time, Inc. v. Hill, 385 U.S. 374, 382


I would add to this list: Central Hudson Gas & Elec. Corp. v. New York Pub. Serv. Comm'n, 447 U.S. 557, 592-94 (1980) (Rehnquist, J., dissenting) (no sharp distinction between a marketplace for

goods and a marketplace for ideas can long be maintained); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (classrooms as the quintessential marketplace of ideas); Roth v. United States, 354 U.S. 476, 484-85 (1957) (obscenity unprotected because it does not contribute to the marketplace of ideas); Beauharnais v. Illinois, 343 U.S. 250, 285 (1952) (Douglas, J., dissenting)

. visualized disappears. In its place there is

("The free trade in ideas which the Framers

substituted a new orthodoxy, an orthodoxy that changes with the whims of the day."); Dennis v. United States, 341 U.S. 494, 503, 545-46, 549-50, 553 (1951).





OF SPEECH 3 (1989).

Brietzke: How and Why the Marketplace of Ideas Fails




its chief commodities,

its most active item in trade."8

and ever since the market opened,

racism has remained

I will illustrate some of my arguments with references to R.A. V. ,9the most

serious challenge that the marketplace of ideas analogy has faced recently.

R.A. V.,


a minor (allegedly) burnt a wooden cross on an African-American

family's lawn and was charged under a Bias-Motivated Crime Ordinance.

Supreme Court held this Ordinance to be an unconstitutional infringement on


R.A.V.'s free speech rights.



The first of the Holmes/Brandeis implicit assumptions is that their analogy is logically defensible, that there are enough significant points of resemblance between the speech process and the economists' model of a "free" (unregulated) and competitive market for goods and services-if only judges will perfect speech competition by striking down such governmental regulations as they can identify. I° This is similar to Milton's arguments," if he would permit his pre-capitalist and not overtly materialist sentiments to be dressed up in the language of a neoclassical economics-a field where Holmes displayed more enthusiasm than expertise. Milton was, however, reluctant to trust to something like market forces when it came to blasphemous and atheistic tracts,1 2 just as


Charles R. Lawrence, If He Hollers, Let Him Go: Regulating Racist Speech on Campus,





See Richard Delgado,

Campus Antiracism Rules:


Narratives in Collision, 85 Nw. U. L. REV. 343, 385-86 (1991) (Racist speech lends credibility to views of the dominant group and disempowers any minority rebuttal, "a result at odds, certainly, with marketplace theories of the first amendment.") A powerful "narrative jurisprudence" about

minority suffering serves as a counterweight to uncritical celebrations of First Amendment doctrines.


O'Connor, JJ., believed the ordinance to be invalid because it was "overbroad," while the other five

Justices (per Scalia, J.) held the ordinance to be "facially" invalid under the First Amendment,


criminal law of trespass, however.

9. R.A.V.


City of St.









it purported to regulate the content of speech. R.A.V. was guilty under a content-neutral

10. See

11. It is harder than the alchemist's task, "to sublimat any good use out of" licensing

Central Hudson, 447 U.S. at 592-94.

restrictions on the publication of books. John Milton, Areopagitica: A Speech of Mr. John Milton for the Liberty of Unlicenc'dPrinting. To the ParliamentofEngland(1644), in THE PROSE OF JOHN

An "Oligarchy of

twenty ingrossers" (i.e., monopolists or what we would call oligopolists today) would try "to bring

a famin upon our minds again" by restraining publication. Id. at 325. See THE SHORTER OXFORD

612 (3d ed. 1967) (meaning of "engross" in

MILTON 265, 282-83 (J. Max Patrick ed., 1967) [hereinafter Areopagitica].



12. Milton praised the Athenian censors' banning of "blasphemous and Atheisticall" materials,

" Areopagitica,

supra note 11, at 273-74. He condemns the Pope's going beyond "matters Hereticall" to censor all writings in 1515, "as if S. Peter had bequeath'd them the keys of the Presse." Id. at 279, 279 n.91.

while they tolerated "voluptuousnesses and the denying of divine

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do not trust the marketplace to govern hard-core pornography.1 3

judges today

In any event, numerous "failures" can be discovered in any ideas marketplace- for example, the racism reflected in R.A.V. These failures cast doubt on the appropriateness of the marketplace of ideas analogy, and they can be used to justify some of the governmental regulations that the justices abhor.





explicit by

Milton, 4




Whitney concurrence,

and later by Justices Harlan 5 and Brennan, 6 is that the

St. Paul's followers could burn the "magick" Ephesian books because this was a private, voluntary act. Id. at 286. See F.E. HUTCHINSON, MILTON AND THE ENGLISH MIND 65 (1946) (Milton's

tolerance does not extend to "popery and open superstition.

"). Roth v. United States, 354 U.S. 476,

13. See Miller v. California, 413 U.S. 15, 29 (1973);

484-85 (1957) (obscenity is unprotected because it does not contribute to the marketplace of ideas).

14. Perhaps Milton's strongest argument is that the "State shall be my governours, but not my

criticks; they may be mistak'n in the choice of a licencer, as easily as this licencer may be mistak'n

in an author "

obedience to "the voice of reason from what quarter soever it be heard," and he begins by noting

when complaints are freely heard, deeply

." Id. at 266, 277.

As a humanist, Milton stresses the development of a civic "vertu" which is very Christian and otherwise very different from Machiavelli's. See id. at 288, 296-97. Having proclaimed the "first

tidings" of Reformation, England is now full of the "backwardest schollers" because of suppressions by Churchmen. Id. at 320. But through "the solidest and sublimest points of controversie and new

of corruption" and become "a noble

and puissant Nation rousing herself." Id. at 324. (This kind of "progressive" nationalism is seen in many of the less critical celebrations of the First Amendment). An "inquisitionall rigor" has not made Italy and Spain "the better, the honester, the wiser, the chaster." Id. at 298. See HUTCHINSON, supra note 12, at 61 (Milton allows "Church and Commonwealth to keep a vigilant eye upon such publications as may infect the nation with dangerous mischief, but he warns against

the still greater danger of fettering the expression of opinion."); Laski, supra note 3, at 171 (Milton believed that knowledge unlocks all doors to virtue and to rightful power). Areopagitica is "the first fundamental plea for extending the idea of religious liberation to every sphere of secular life." Id.

Areopagitica,supra note 11, at 302. Tongue in cheek, he praises Parliament's

that the "utmost bound of civill liberty [is] attain'd

consider'd, and speedily

invention," England

could cast "off the old and wrincl'd skin

15. Cohen v. California, 403 U.S.

15, 24 (1971)

(per Harlan, J.):

The constitutional right of free expression is

governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity

and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.

.designed and intended to remove



IN AMERICA 240-41 (1986): historically, speech activity was an "integral and vital element" in

moving from autocracy to democracy,

see id. at 229:

and concerned with developing a general capacity rather than with feeding units of information into a mental machine." (This "general capacity" arguably remains underdeveloped, despite an abundant free speech.)


the "actual relationship" between free speech and political decisionmaking is "subtle

and in reducing citizen antagonism and estrangement.

Brietzke: How and Why the Marketplace of Ideas Fails




ideas marketplace is essential to an effective functioning of the democratic process. Government serves an informed electorate by making informed decisions, the relevant information having been mediated and coordinated

through the ideas marketplace.

This is the "place" where political ideas attain

a legitimacy by passing the tests of a fair process, legitimacy being the basis for recognizing genuine political obligations. Nothing could be more important under our Constitution than an effective democratic process. Alexander Meiklejohn makes this assumption into the centerpiece of his absolutist protection of the "political" speech category-as part of a "systemic" freedom rather than as an individual right.' 7 The problem is that we can scarcely recognize the process or system addressed by this assumption, since it amounts to an eighteenth century, Federalist No. 51 kind of democracy. In such a


there is an active public participation,

a relative equality among

speech inputs and outputs, and a freedom from the overweening influence of organized interest groups, political action committees, media "sound bites," and an attendant public cynicism about the fairness of the process.

The third assumption is that a fragmented society, where individuals are isolated one from another except as markets coordinate their ideas and activities, is both what we have and what we want. People are seen as deeply rational loners who are comfortable with uncertainty, complexity, and more than a little disorder. We are supposedly eager to demonstrate our dignity, autonomy, and

tolerance while avidly debating the issues of the day. 8

This assumption is seen

16. Richmond Newspapers,




448 U.S. 555,

587-88 (1980) (Brennan,


concurring). [T]he First Amendment

has a structural role to play in securing and fostering our

republican system of self-government

"the principle that debate


other civic behavior-must be informed. The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and

but also the antecedent assumption that valuable public debate-as well as

Implicit in this structural role is not only

robust, and wide-

on public issues should be uninhibited,

thus entails solicitude not only for communication itself, but for the indispensable conditions of meaningful communication.



22-27 (1948); Alexander Meiklejohn, The FirstAmendmentis anAbsolute, 1961 SUP. CT. REV. 245.

See BOLLINGER, supra note 15, at 46 (citing Meiklejohn, nothing more constricting

RULES OF ORDER is appropriate

61 (quoting Meiklejohn, "To be afraid of ideas

than a ROBERT'S

for regulating citizens performing their sovereign functions); id. at

is to be unfit for self-government."); infra notes


24-36 and accompanying text (analyses of "political" speech).

18. See BAKER, supra note 7, at 7; BOLLINGER, supra note 15, at 239, 247; Delgado, supra

Milton, Malls, and

note 8, at 379; Steven Helle,

Whither the Public's Right (Not) to Know?

MulticulturalSpeech, 1991 U. ILL.L. REV. 1077, 1080 (the assumption that individuals are rational and have an existence or meaning apart from society is implausible under the philosophies of Hume,

Rousseau, and Durkheim); David Kretzmer, Freedom of Speech and Racism, 8 CARDOZO L. REV.

turns on opportunities for



479 (1987)

(under social contract theories, legitimacy

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and is

markedly at odds with a frequently-observed intolerance and the pursuit of personal security through a quietude and conformity.

at play in Areopagitica, 9 is vulnerable to a communitarian critique,'

Milton is at his most interesting and eloquent 2

in the fourth assumption

individual political participation); Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 DUKE L.J. 484, 535.




in Areopagitica, "readers will never learn [to] distinguish good from evil unless they are allowed

a choice." A learning process is necessary because good and evil look so much alike. Id. When

"God did enlarge the universall diet of mans body, saving ever the rules of temperance, he then also

." Areopagitica, supra note 11, at

left arbitrary the dyeting and repasting of our

286. The "rules of temperance" would appear to permit some governmental regulation of the intemperate and, here and elsewhere, the "repasting" of the mind is treated as a matter between the

individual and God. Compare Salvador de Madariaga, Liberty in Society, in FREEDOM OF EXPRESSION: A SYMPOSIUM 58, 62 (Herman Ould ed., 1970) (quoted in note 20, infra).

20. See, e.g., Stephen A. Gardbaum, Law, Politics, and the Claims of Community, 90 MICH.

L. REv. 685 (1992). Criticizing Milton, Salvador de Madariaga, supra note 19, argues that:

Society cannot fully know itself

mhe only approach to knowledge which may enable a society to live not quite as a

lunatic asylum is through study of collective life.

is so monstrously out of proportion with the powers of

even the cleverest of us that nothing but the free exchange of trials and errors of all the

Now the complexity, the subtlety, the

vastness of collective life

since even man cannot fully know himself

men of good will [will suffice].

de Madariaga, supra note 19, at 62. excludes racists like R.A.V.).

(Note the "men of good will" qualification that presumably

21. It is only the "troublers," the "dividers of unity," who would prevent an assembly of pieces

of the body of "Truth." Areopagitica, supra note 11, at 318. Milton asks: "[W]ho

Truth put to the wors,

Her confuting is the best and surest

suppressing." Id. at 327. Like Holmes', Milton's Truth "can never be stabilised or defined. It is

in a continuous state of

OF EXPRESSION: A SYMPOsIUM 122, 127 (Herman Ould ed.,

." Herbert Read, On Milton's Areopagitica, in FREEDOM

1970). But Milton departs from the

practices of many today when he puts orthodoxy and authority (especially biblical authority) forward

as standards of truth. de Madariaga, supra note 19, at 59. God functions as the prototypical deus

ever knew

in a free and open encounter.

ex machina in some of Milton's arguments. See supra note 12. When "false

teachers are

busiest in seducing;

God then raises to his own work men of rare

." Areopagitica,

supra note 11, at 330.

To take a famous example, someone "who destroyes a good Booke, kills

reason it selfe, kills the Image of God

." Id. at 272. Note the good book qualification: until

the Inquisition, "Books were ever as freely admitted into the World as any other birth;

it prov'd a Monster, who denies, but that it was justly burnt, or sunk into the Sea."

(Such burning and sinking can and have been treated as marketplace transactions, but this absence of a "prior restraint" as a justification for subsequent restraints will jar many contemporary readers.)

by what

is contrary." Id. at 288. (This echoes a Hegelian dialectic-without a materialism of course.) For

if the will and conscience be not

but if Id. at 281.

Milton's Truth is discovered through purification: "that which purifies us is triall

"the pure all things are pure"; "knowledge cannot defile,

defil'd." Id. at 285. (In other words, the kind of "hate speech" tolerated in R.A. V. will not spawn more racists or make existing racists worse.) What "wisdome can there be to choose, what

to a discreet

and judicious Reader serve in many respects to discover, to confute, to forwam, and to illustrate."

Id. at 285. (This amounts to a workout in the "intellectual gym" described infra note 23 and

continence to forbeare without the knowledge of evill?" Id. at 287. "[Blad

Brietzke: How and Why the Marketplace of Ideas Fails




that helps to account for the continued popularity of the marketplace analogy, by offering something for everyone. Skeptics, pragmatists, and idealists alike are mollified because a radical objectivism-"truth" exists and is found through "robust debate" in the market-coexists with the radical relativism that is given fullest expression much later, in Gertz: "there is no such thing as a false idea." 22 Justice Holmes sounds like a Social Darwinist or an Adam Smith:

fighting faiths"), as the

invisible hand of the ideas market (a naturalistic fallacy) guides the truth to victory. If this were indeed the case, we would expect demonstrably false ideas

(e.g., the racism reflected in R.A. V.) to have lost influence over time. Instead, we see an ebb and flow in the influence of such ideas, a cycling that appears to respond to political and socioeconomic events. Like Milton's, our truth seems to be conditioned by our self-interest and our socialization. Falsity does not seem to aid in the search for this truth, or even in the search for beliefs in which we are most confident: "A needle is harder to find in a haystack than in two pieces of hay," and the notion that false ideas provide an "intellectual gym," where minds can be strengthened through exercise, reflects an unduly

optimistic assessment of

competition will correct pernicious ideas ("upset

our reactions to falsity. 23

accompanying text.)

See Rodney A. Smolla,

Rethinking First Amendment Assumptions About Racistand Sexist Speech, 47 WASH. & LEE L. REV.

(this Gertz statement "emancipated the outrageous opinion from legal censure"

See also infra note 43.




22. Gertz


182 (1990)




339 (1974).


through an "almost nihilistic" denial of constitutional authority to enact community values into law); Strossen, supra note 18, at 534 (quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW

§ 12-8, at 838 n.17 (2d ed. 1988). ("If the Constitution forces government to allow people to

then it must also require


government to allow them to advocate hatred, racism, and even genocide.").


id. at 23 (the fear of losing some truth through regulation is "relevant but hardly dispositive"); Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling,

speak and write in favor of peace,


and justice,


17 HARV.

C.R.-C.L. L. REV.


177 (1982)

("truth" is unlikely to emerge from racial insults,

which "are

not intended

to inform or convince";

they "invite

no discourse,

and no speech in

response can cure the inflicted harm"); Ronald Dworkin, Mr. Liberty, N.Y. REV. OF BKS., Aug. 11, 1994, 17, at 20 ("Holmes said that a free marketplace of ideas is the best way to discover truth, which makes no sense if there are only individual 'can't helps'"-Holmes's strong but intensely personalized views of morality-"and no real truth for free discussion to discover."); Ingber, supra note 3, at 15 (if indeed truth defeats falsity, it must be verifiable, objective, and unaffected by

"socioeconomic status, experience, psychological propensities

societal roles," or the way the

ideas are packaged); Nicholas Wolfson, Free Speech Theory and Hateful Words, 60 U. OF CINN.

L. REV. 1, 7 (1991) (like J.S. Mill,

But see Wolfson, supra, at 3 (citing RICHARD POSNER,

THE PROBLEMS OF JURISPRUDENCE 114 (1990)) (truth is the "consensus which develops over time"

that "should be subjected to a Darwinian survival test"; a free market produces better results than

a "command economy" in ideas, even if the majority comes to believe in astrology).

"we live in an age 'destitute of faith, but terrified at

skepticism'"); supra note 22; infra note 43.

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My description of these four assumptions is arguably necessary because the most important category-"political" speech 24 -wholly depends upon the

If this

marketplace does not exist and function as imagined, political speech theory becomes incoherent: there is no basis for believing that the relevant information is produced, consumed, and then assimilated into a democratic decisionmaking. The standard move under the dichotomous structure' of speech analysis is to put "good," protected, political speech (or, in other contexts, literary/artistic or

scientific speech) into opposition with a pre-selected, exceptional category of

will be

unprotected or less-protected


of ideas,







speech. 2 6

The speech being analyzed

concurring and

citing cases):

than speech about other topics" because regulation raises "the specter that the Government may

effectively drive certain ideas or viewpoints from the marketplace" and because "government must

remain neutral in the marketplace of ideas

concern" to merit constitutional protection for this reason?)

25. While the urge to classify things probably inheres in all of thought, the categorization of

speech issues has been an academic and judicial growth industry since Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Chaplinsky Court admitted that certain kinds of speech are unprotected because of the harm they impose on individuals and society, and the race was soon on to develop coherent and persuasive criteria for distinguishing among categories of speech-harm. Id. at 571-72. These categories emerged slowly, as ad hoe responses to particular cases. Inertia and

traditions of legal reasoning caused the contents of the categories to change more quickly than the

categories themselves.

shift" in speech theory. See generally THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC


Isolated factors must be organized somehow in order to make legal analysis possible, and categories offer "familiar landmarks of thought." Jay M. Feinman, The Jurisprudence of Classification, 41 STAN. L. REv. 661, 662 (1989). But, a jurisprudence-by-categorization too easily becomes a mere pigeonholing, a lazy acceptance of structure as a substitute for clear and hard thinking. Some or much creativity gets lost when thoughts are squeezed into narrow categories-usually two categories at a time, since the pondering of three or more factors simultaneously can be managed only imperfectly and with difficulty. Facts are approached from an either/or perspective-they must either be "fighting words" or "political speech" in R.A. V., for example-that

forestalls the search for more relevant, realistic possibilities (e.g., "hate speech") that lurk in the

A false dichotomy (or dilemma) frequently results from

this process of mutual exclusion under a binary logic, and the legal conclusion will often be that you

grey areas between bright-line categories.

24. R.A.V. v. City of St. Paul, 505 U.S. 377, 421-36 (1992)

(Stevens, J.,

"Speech about public officials or matters of public concern receives greater protection

." (Was R.A.V.'s cross burning of sufficient "public

These are conditions conducive to what Kuhn would likely call a "paradigm

must take all of it, an absolutist free speech for example, or you will wind up with nothing. See Paul H. Brietzke, Public Policy: Contract,Abortion and the CA, 18 VAL. U. L. REV. 741, 744-45, 753-54, 761-64 (1984).

26. Delgado, supra note 8. at 377, offers the most complete list of categories of unprotected

speech (one of which will be put in opposition to "political speech" by a judge):


disseminates an official secret; speech that defames or libels someone; speech that is obscene; speech that creates a hostile workplace; speech that violates a trademark or





a criminal







Brietzke: How and Why the Marketplace of Ideas Fails




uniquely protected if it seems to fit into the "good" category rather than into the unprotected category. This will be so unless the speech poses a "clear and present danger" which cannot be contained within the policies underlying the unprotected category (that has already been rejected). This "danger" must be serious indeed: American law treats as marginal inconveniences numerous speech-acts which judges in some other democracies regard as serious threats to a political or social stability. Our and their thought processes are certainly not

very precise:

"[W]e are merely guessing when we suppress [speech]; but we

are also guessing when we decide not to suppress."27

In R.A. V., Justice Stevens describes a history of the Court "narrowing the categories of unprotected speech. "21 One effect of this narrowing has been an explosive expansion in what counts as political speech. The attitude now seems to be that all non-obscene speech is somehow political, that the benefits from such speech must outweigh the harms almost by definition, and that the unprotected speech categories are conventional exceptions to be used sparingly, if at all, in a mature society. Anything now becomes protected political speech if (as in R.A. V.) the speaker can claim, with some minimal plausibility, that

plagiarizes another's words; speech that creates an immediately harmful impact or is tantamount to shouting fire in a crowded theatre; "patently offensive" speech directed at captive audiences or broadcast on the airwaves; speech that constitutes "fighting words"; speech that disrespects a judge, teacher, military officer, or other authority figure; speech used to defraud a consumer; words used to fix prices; words ("stick 'em up-hand over the money") used to communicate a criminal threat; and untruthful or irrelevant speech given under oath or during a trial.

See BAKER, supra note 7, at 5 ("the constitutional protection of free speech bars certain governmental restrictions on noncoercive, nonviolent, substantively valued conduct, including

speech include commercial speech

and sexually-explicit materials. 27. SCHAUER, supra note 23, at 29 (characterizing this as a cost-benefit analysis). See Landmark Communications Inc., v. Virginia, 435 U.S. 829, 845 (1978) (The clear and present "danger must not be remote or even probable; it must immediately imperil.") (quoting Craig v. Harney, 331 U.S. 367, 376 (1947)); BAKER, supra note 7, at 29; THEODOR MERON, HUMAN RIGHTS LAW-MAKING IN THE UNITED NATIONS: A CRITIQUE OF INSTRUMENTS AND PROCESS 27-28 (1986) (discussing legal practices in other countries); SCHAUER, supra note 23, at 141, 218 n.9; LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, § 12-9, at 841-48 (1988) (The Abrams

dissent, Abrams v. United States, 250 U.S. 616, 630 (1919), "infused more immediacy" into the clear and present danger test, but it is "marred by ambiguity" and open to the "cynical interpretation

that speech is protected only so long as it is ineffective."); Kretzmer, supra note 18, at 474 (an

"article of faith," impossible to refute, that dangers of suppressing political speech are greater than

for other types of speech).

nonverbal conduct"). Categories of less-protected or "low-value"

In the earlier and closely-divided Beauharnaisv. Illinois, 343

U.S. 250 (1952), the Court banned speech that had a substantial political content: a demand for

action addressed to the Mayor and City Council. Id. at 266. The Court thus condoned "expansive

Id. at 271-72 (Black, J., dissenting). This is

state censorship" of a "matter of public concern."

something it would presumably not do today, although the R.A. V. Court repeatedly cites



505 U.S.

at 428.


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"persecution" resulted from his or her advocacy of "disfavored ideas." While

the cases announce brave judicial attitudes, analyses seem to be driven by fear-of the "slippery slope" (or of "letting the camel's nose into the tent") that

often distorts

legal reasoning by pouring substance into improbable worst-case

'scenarios. "29

The extreme version of this "parading of the horribles" is that, free speech

being indivisible," the first step away from a fundamentalist First Amendment inevitably leads down the road to political authoritarianism. The "thought

police" will freeze our political

excuse for imposing censorship and reverse discrimination (or a "political

correctness"); 32 content regulation necessarily leads to a viewpoint regulation,


necessarily licenses more general ones;T examinations of "policy" will rapidly

truth; 35 and

socially-valuable experiments in discourse will be abandoned, with the result that

consensus; 3 mere incivility will serve as an

which is much worse; 33 the licensing of specific governmental

dilute our First Amendment "principle," and society will lose

many will be afraid to say anything.


The main advantage of having so broad a political speech category, of

risk of




a dichotomy,


that this




29. See BOLLINGER, supra note 15, at 36 (the "slippery slope" as a "standard argument" in

law); SCHAUER, supranote 23, at 84 ("slippery slope" arguments should include demonstrations that

the slope is particularlyslippery over the facts in question); id. at 102-03 (leaving a margin for error

should not mean that the

Strossen, supra note 18, at 518 ("Statements that defame groups convey opinions or ideas on matters of public concern.").

search for principled delineations of the

scope of free speech is abandoned);

30. Strossen, supra note 18, at 534.

Equality and Freedom of Expression: The Hate Speech Dilemma,

McGee, Hate Speech, Free Speech and the

32 WM. & MARY L. REV. 211,

University, 24 AKRON L. REv. 363, 364 (1990).

32. See Anti-Defamation League v. FCC, 403 F.2d 169, 174 (D.C. Cir. 1968) (Group

approaches the

area of political and social commentary."); Marjorie Heins, Banning Words: A Comment on

that Wound,"

id. at 237 (discussing attitude that all speech resulting from inter-group tensions must be treated as political speech); Strossen, supra note 18, at 518, 534.


See Toni M. Massaro,

224 (1991); Robert W.

defamation is usually not actionable; however detestable, "this kind of speech


18 HARV. C.R.-C.L. L. REv.585, 589-90 (1983); Massaro, supra note 31, at 214;

33. See R.A.V. v. City of St. Paul, 505 U.S. 377, 430 (1992) (Stevens, J.,concurring);

Wolfson, supra note 23, at 5 (one judicial breach in content neutrality will lead to others, in pursuit of uniformity and coherence). See also Strossen, supra note 18, at 530.

34. Kretzmer, supra note 18, at 472.

35. See RONALD DWORKIN, A MATrER OF PRINCIPLE (1985); SCHAUER, supra note 23, at 24.

But see also id. (this concern is "relevant but hardly

36. Beauharnais v. Illinois, 343 U.S. 250, 273 (1950) (Black, J., dissenting) ("[I]n arguing for

or against the enactment of laws that may differently affect huge groups, it is now very dangerous

to say something critical of one of the groups.").

First Amendment: A Theory of UnprotectedSpeech, 65 S. CAL. L. REv. 1887, 1894-95 (1992).

See Alon Harel, Bigotry, Pornography,and the


Brietzke: How and Why the Marketplace of Ideas Fails




miscategorization: many of the unprotected, non-political categories have

become so narrow that

aim at protecting the

"speech that matters." This

tolerating the kind of speech-harm that is seen in R.A.V. and that a slight broadening of some of the categories of unprotected, non-political speech would minimize.

judges can hardly miss their

tactic carries risks of its own, however, of courts



Advocates of a broad and absolutist political speech are right: dissenters

having to prove the

"hard-to-measure worth" of free speech. 37 This is an obviously-important protection, during crisis times or when the speech-harm can indeed be cured by more speech, but it should not forestall the search for protections which are more "cost-effective" in terms of having fewer speech-harm side effects. The nature of such protections is suggested by persistent critiques of the political speech/marketplace of ideas nexus. Critics plausibly argue that this nexus operates "to exaggerate the evils of government and [as in Areopagitica] the goodness of people," to "understate the risks and harms of speech and to overstate its benefits,"" and to understate the physical and psychological dangers, and often the futility, of attempts to counter bad speech with good.

Stanley Ingber concludes that the ideas marketplace changes little and has little

to do with an informed choice.


are protected against the tyranny of the majority, without

Rather, this nexus serves to socialize the


than others.


into a conformity

to some perspectives

[, and] ideas

that support an entrenched power structure or ideology are most likely to gain acceptance. "

"marketplace of ideas is as flawed as the economic market

37. TRIBE, supra note 27, § 12-2,

(discussing miscategorization

at 793.

See R.A.V.,


505 U.S.


at 427





'serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching

device', may be entitled to constitutional protection"); SCHAUER, supra note 23, at 144 (there can be no simple formula-"Obscene pictures may be used to make a political argument; commercial advertising may be artistically creative; literature may carry an economic message."); Kretzmer,

supra note 18, at 477, 497; Wolfson, supra note 23, at

the avant garde as well as an attempt to control mediocrity, and symbolic speech is relatively

harmless unless it is directed against specific persons.).

20, 33 (The outrageous can be the mark of


risks arising

that is part

38. BOLLINGER, supra note 15, at 237.

Ingber, supra note 3, at 17, 27.


See BOLLINGER, supra note 15, at 9 (the idea that society

elevates itself through acts of extraordinary tolerance); Massaro, supra note 31, at 221; Ingber, supra note 3, at 29-30 (discussing Board of Educ. v. Pico, 457 U.S. 853 (1982)) (government's ability to remove books from library is limited, but government is not required to foster a diversity of experience and an openness to change by, e.g., acquiring a broader range of books).

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Society is not a debating club like the Oxford Union, not a "town meeting or a group of scientists interested in figuring out some truth."' Producers

often speak to make a profit, and they

ostensible consumers, who often misunderstand or ignore the message, often lack a viable channel for communicating their response, and are often afraid to make fools of themselves by speaking up. Feeling cut off from an active participation, many people are left with the passivity of an evening in front of

the TV that is controlled (even after the advent of cable TV) by oligopolistic networks practicing a very definite viewpoint censorship. Many subjects or

perspectives are ignored or relegated to fragmented "market

a "counterculture" newspaper or a "public access" TV channel, because they are thought to be "distressing" or "unentertaining" and, thus, unprofitable. Most of effective political speech is really a commercial speech, and it would receive less ("low value") protection if the Supreme Court pushed some of its analyses to their logical conclusions. 4


are usually very different people from the


The deep (economic) 42 rationality assumption characteristic of the ideas marketplace, and of other markets as well, cannot hold in the real world:

it ignores a host of factors that make us human, including altruism, habit, bigotry, panic, genius, luck or its absence, and factors such as peer pressures, institutions, and cultures that turn us into social


BOLLINGER, supra note 15, at 229.


See BAKER, supra note 7, at 95 ("[M]arket practices, paradigm examples of instrumental

action, reliably produce only commodity ends."); id. at 204 ("Speaking anthropomorphically, the competitive market directs commercial speech toward creating the world as 'profit' requires"-a constant increase in desires which our purchases will not satisfy, and a molding of human images around this purpose rather than around what we might want the world to become); TRIBE, supranote

27, § 12-18, at 943; C. Edwin Baker, Scope of the FirstAmendment Freedomof Speech, 25 UCLA L. REV. 964, 979-80 (1978) (the media mostly reinforce audience attitudes, and advertisers are similarly unlikely to upset the status quo); Paul Brietzke, Urban Development and Human Development, 25 IND. L. REV. 741, 758 (1992) (market surrogates spring up in areas where the

main market does not function, and they segregate activities when they are used to create barriers to entering valuable markets); id. at 759. See also Ingber, supra note 3, at 25, 86 (discussing some of the dangers of what arguably are market surrogates). But see Wolfson, supra note 23, at 40 (Consumers test out ideas much as they do goods and services-"there is freedom and autonomy, prosperity and initiative.").

42. Economic analysis of social issues where commercial motives are not popularly thought to

dominate have been widely criticized, but analyses can be useful if they are modified to take account of these criticisms. See, e.g., Brietzke, supra note 41, passim; Strossen, supra note 18, at 566;

Wolfson, supra note 23, at 3; id. at 37-38 (The law and economics of James Buchanan and some

others paradoxically agrees with the "old

of power," in a "despairing vision of society" which is "nihilistic and cynical to its core.").

Marxist left"-"Speech is merely the epiphenomenon

Brietzke: How and Why the Marketplace of Ideas Fails




animals. A dehumanized, desocialized, and often sexist "economic man" [or "speech man"] supposedly goes through life as if it were one long series of analogies to isolated transactions on the New York Stock

Exchange .4

Rationality assumes the ability to separate the often seductive form of the message from its substance, and rationality may dictate a recourse to quietude or violence rather than to discussion." The actual outcomes from political speech in a putative marketplace of ideas are often very different from the rational ones projected by speech theory.

Neoclassical (or Chicago School) economics approaches the marketplace of

How much is free speech worth to you, how much

are you willing to "pay" for it? This is an unhelpful perspective on insuring an access to the exchange of information, and a political access generally (in Holmes' second assumption), since the poor are unable to pay (in money, time, education, or other scarce resources) as much as it takes to protect their speech. Indeed, this is what makes them poor, in speech and other areas, and it makes the ideas marketplace into an analogy which is very long on liberty (based on the willingness to pay) and very short on equality (because many are unable to pay). For example, the poor do not get to participate in our most efficient information market: the New York Stock Exchange that, through its rapid reactions, exerts a massive influence on which political policies can be adopted. The New York Stock Exchange is a significant constraint on "robust" debate, since some potentially worthwhile policies are not mentioned officially-for fear of how the New York Stock Exchange will react. Even the garrulous Robert Reich learned to be cautious. Also and to the extent that the "targets" of hate

ideas by asking, in effect:

43. Brietzke, supra note 41, at 753. See Baker, supra note 41, at 972; id. at 974 (Truth cannot

be objective, since "knowledge depends on how people's interests, needs, and experiences lead them to slice and categorize an expanding mass of sense data."); id. at 977; Helle, supra note 18, at 1079 (citing Jay Janson on the rationality assumption in Milton, Jefferson, and Mill); id. at 1080 (such rationality notions contrast sharply with the ideas of Hume, Rousseau, and Durkheim, who question an individual rationality and whether the individual has existence or meaning apart from society); Massaro, supra note 31, at 227-28 (citing Richard Rorty, some philosophers are skeptical of the .rationalism" underlying free speech; notions of good and evil are contingent and there is no neutral,

ahistorical way of choosing among them-a perspective that makes free speech even more compelling for some); supra notes 18-20, 23 and accompanying text. But see also BAKER, supra note 7, at 18 ("Limitations on speech will deepen our admitted irrationality and increase the probability of deleterious conclusions.").

44. SCHAUER, supra note 23, at 78; Ingber, supra note 3, at 31.

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speech are poor, they will lack the marketplace means of countervailing and correcting hatred, or of rewarding tolerance, unless they can rely on the paternalism of others who have the means. 45

The marketplace of ideas analogy, thus, cannot explain the indeterminacy (from a "duopoly," like that of pro-choice versus right to life) that sometimes results from a bargaining over ideas between groups or communities with very different "utility functions" (wants and needs). Based on the ability to pay as they are, other political bargains "are all-too-determinate: the rich rarely surrender even marginal advantages at a price the poor can afford, while the poor frequently surrender important interests for a pittance."" This is particularly likely if hate speech like R.A.V.'s deprives minorities of the

psychological integrity they need to bargain effectively. In brief: "No one has


fair or is apportioned in accordance with the contribution each group can make to a 'best' understanding of the world."' Under the circumstances, many people who do not feel themselves part of a broad "establishment" (a group which certainly includes most judges) believe the speech process to be unfair.

For them, the legitimating function of "free" speech, sought so avidly in Justice

seriously suggested that the existing distribution of access opportunities

Brandeis' Whitney concurrence, has

failed to materialize. 48

45. Brietzke, supra note 41, at 780. See T. Alexander Aleinikoff, The Constitutionin Context.

The ContinuingSignificance of Racism, 63 U. COLO. L. REv. 327, 339 (1992) ("[Dliscrimination in the economic sphere is particularly egregious in a political system based on a market economy

purportedly dedicated to equal opportunity for wealth-maximizing individuals."); Baker, supra note 41, at 971 (exceptionally, obscenity cases ignore the marketplace willingness to pay criterion of social value); Ingber, supra note 3, at 29-30; id. at 75, 86 (discussing a status quo bias, a blindness to potential evils outside the market boundaries of ideas people are willing to pay for). We do not trust lawful markets to allocate some of the other things irrelevant to democracy-crack or commercialized sex, for example-so why trust the market to allocate racist ideas? See Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 n.9 (1974) ("an opportunity for rebuttal seldom suffices to undo the harm of defamatory falsehood"-"truth rarely catches up with a lie").


47. Baker, supra note 41, at 978. See BAKER, supra note 7, at204 (quoting C.B. Macpherson)

Brietzke, supra note 41, at 754.

See Brietzke, supra note 25, at 879.

("the market system

this "will reflect or permit" the "full development of the individual personality"); ROBIN PAUL MALLOY, PLANNING FOR SERFDOM: LEGAL ECONOMIC DISCOURSE AND DOWNTOWN DEVELOPMENT 70 (1991) ("[W]ealth maximization discourse can ignore the issue ofwhether African

Americans or Hispanics, for instance, have anything to exchange in the marketplace," or whether they "have been systematically deprived of an opportunity to acquire the wealth necessary to bargain voluntarily."); Aleinikoff, supra note 45 (quoted in supra note 45); Baker, supra note 41, at 975 (In the face of disagreement, the ideas marketplace generates the "best" understanding only if it


reached."); Brietzke, supra note 41, at 787.

48. BAKER, supra note 7, at 16-17; Harel, supra note 36, at 1919-21. See Ingber, supra note

creates the wants which it satisfies," and there is no reason to expect that






or groups





3, at 49 (Dominant groups with establishment views see the ideas market as working well, while dissidents see this market as an ideology which diffuses protest by giving the illusion of control.). But see also id. at 36 (Alexander Bickel's argument that the fairness of the ideas market, rather than

Brietzke: How and Why the Marketplace of Ideas Fails




If it can be said to exist, the ideas marketplace is shot through with "market


puny by comparison. Today, if not in Holmes' or Milton's time, there is no "free" or "natural" ideas market. There is no "there" there because unorganized and perhaps unorganizable speakers are unable to compete with the wealthy corporations and organized interest groups that have access to sophisticated public relations tools and communications technologies. Wealthy and powerful groups seldom participate in the ideas market unless a profit can be made or their interests are somehow threatened. When such groups choose to participate, they sometimes succeed in fragmenting or (by erecting barriers to entry) in closing information markets to rival ideas,' so as to increase their profits or to gain "economic rents" s through the political process. A badly-

failures," 49 the effects of which often make governmental


its wisdom, justifies its continued acceptance).

the theory of market failure is not well developed and consists of little more

than a series of policy recommendations. Market failures arguably include: the problem of "public goods," of things which belong to everyone and for which no one wants to pay; "externalities," social costs and benefits that are not taken into account by private parties in their transactions; and fragmentation, barriers to entry, and a lack of competition in markets. "Few economists realize or

are literally matters of definition, of what we want markets to do that

admit that market failures

they are not doing." Brietzke, supra note 41, at 763 n.75, 765. In sum, the market failure

argument is that: "Real-world conditions prevent the completely laissez-faire economic market-praised as a social means to facilitate the optimal allocation and production of goods-from

49. Unfortunately,

achieving socially desired results."

BAKER, supra note 7, at 4.

The overall effect is that speech is a public (free) good for some-frequently and paradoxically

See id. at 45, 285 n.5. A market failure

perspective tolerates governmental intervention for efficient allocations or desired distributions in

Baker, supra note 41, at 981-82. For lists of market

failures concerning speech see id. at 965 ("monopoly control of the media, lack of access of disfavored or impoverished groups, techniques of behavior manipulation, irrational response to propaganda, and the nonexistence of value-free, objective truth"); Ingber, supra note 3, at 38-39 (pickets, leafleting, and sound trucks are no longer effective counterweights to the mass media; .monopolistic practices, economies of scale, and an unequal distribution of resources" determine which ideas reach the public, and access to the media is fraught with status quo biases); Massaro,

supra note 31, at 221 (The "prevailing metaphors and cliches" are insensitive to the relative market power of various speakers, and the physical and psychological dangers of meeting bad speech with good.).

those best able to pay for it-but not for others.

ways that do not restrict speech freedoms.

50. BAKER, supra note 7, at 38; Brietzke, supra note 41, at 742, 759, 776. If an ideas

marketplace exists, it presumably operates on university campuses. Yet the nation's universities have recently offered abundant evidence of market failures that "more speech" has done little or nothing to cure: "severe or pervasive harassment based on membership in a group whose

identifying characteristic is practically or historically linked to serious prejudice." Mary Ellen Gale,

On Curbing Racial Speech, I RESPONSIVE COMM. 47, 56 (1990-91).

51. Economic rents are the difference between the rate of return in a market where the supply

is temporarily or permanently fixed and the rate of return in a competitive market. Talented baseball players earn economic rents because the "natural" supply of their skills is narrowly limited, and an exclusive food franchisee at an airport also earns economic rents because the franchisor has artificially restricted the supply of food and drink to a "captive" audience. Similarly, a racist may

seek wealth and/or power by artificially restricting his or her "targets'" life-chances.


id. at 54.

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informed or misinformed public, a market failure in itself, sends inconsistent signals to politicians, and this helps special interest groups frequently to dominate politics by manipulating information and influence. Consider the level and tone of recent "debates" over the crime and health care bills.

While there is little agreement on the precise nature and significance of market failures over speech, a market failure perspective would have us focusing on the relevant issues, rather than on implausible assumptions about how individual interests in speech are automatically transformed into the public interest by an invisible hand. Neoclassical or Chicago School economists recognize market failures as the sole justification for regulation, and Laurence Tribe cites cases for the proposition that the First Amendment "right to know" carries "the implication that government, while it may not close the market, may move to correct its defects and regulate its incidental consequences."52

Some speech regulation undoubtedly stems from politicians seeking a particular speech outcome, while doubting their premises and power. But a market failure perspective shows that this is not the sole explanation of speech regulation that Holmes assumed it to be. 53 At the least, the political speech category should be finely tuned: made somewhat less overinclusive and intrusive on the core policies that motivate the creation of unprotected speech categories. The Supreme Court should open up private and public channels of communication, through modest attempts to equalize access to the ideas markets. This would ameliorate market failures and create a better balance-a more dynamic tension, really-between a liberty and an equality in speech. Such efforts would certainly not amount to the broad equality of opportunity or the

In brief, failures in speech and other political markets, see supra note 49, enable special interest groups to dominate politics by making "bribes." The bribe may take the legally-sanitized

form of a political action committee's contribution, or it may be a credible promise (or threat) to deliver votes on election day. Bribes serve to mitigate political opposition, and the expectation is

rents in return. Brietzke, supra note 41, at

769. See Daniel A. Farber, Legal Pragmatismand the Constitution, 72 MINN.

that the politician will grant opportunities for economic

L. REv. 1331, 1359,

& n. 147 (1988). A racist group, for example, may bribe key politicians who will then promote or wink at racist activities. Much, if not most, of the information available for consideration in an

ideas marketplace is now channelled through government. Ingber, supra note 3, at 37, 74-75.

Much of this information is controlled through the bribery, economic rent-seeking, etc. of special interest groups, tactics which amount to erecting barriers to entering the ideas market.

52. TRIBE, supra note 27, §§ 12-19, at 946 ("See Red Lion Broadcasting Co. v. FCC, 395 U.S.

367 (1969)

See id. at

946 (Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976), supports this proposition); id.

at 946-47 ("This strand of doctrine is most pronounced in the commercial speech field," citing cases); Baker, supra note 41, at 1006 (discussed in note 54, infra). See also